"On September 6, 1991, you were arrested for the crimes of Sodomy in the
First Degree and Sodomy in the Second Degree. These charges were
dismissed. On July 22, 1993, you were arrested for the crimes of Sexual
Abuse in the First Degree and Sexual Abuse in the Second Degree. You
were convicted of the lesser included charge of Menacing. It was these
individual circumstances that led the board to determine it was necessary to
impose the contested special conditions in your case. The board took into
consideration the age of the offenses when it imposed the special conditions
to be implemented at the discretion of your supervising officer.
Consequently, if your supervising officer does not deem it appropriate to
implement the special conditions imposed by the board in your Order of
Supervision, then you will not have to comply with those conditions.
However, if your supervising officer determined that these special
conditions were appropriate to implement, then you would have to comply
with these conditions."

We turn to ORS 144.102, which grants the board authority to determine the
conditions of post-prison supervision. ORS 144.102(3)(a) provides, in part:

"The board * * * may establish special conditions as the board * * *
determines necessary because of the individual circumstances of the person
on post-prison supervision."

We start by examining our standard of review for each of petitioner's
arguments. The standard of review is determined by ORS 183.482(8). Martin v. Board
of Parole, 327 Or 147, 157, 957 P2d 1210 (1998). ORS 183.482(8) provides, in part:

"(a) The court may affirm, reverse or remand the order. If the court
finds that the agency has erroneously interpreted a provision of law and that
a correct interpretation compels a particular action, the court shall:

"(A) Set aside or modify the order; or

"(B) Remand the case to the agency for further action under a correct
interpretation of the provision of law.

"(b) The court shall remand the order to the agency if the court finds
the agency's exercise of discretion to be:

"(A) Outside the range of discretion delegated to the agency by law;

"* * * * *

"(c) The court shall set aside or remand the order if the court finds
that the order is not supported by substantial evidence in the record.
Substantial evidence exists to support a finding of fact when the record,
viewed as a whole, would permit a reasonable person to make that finding."

Petitioner argues that the board exceeded its authority in imposing the
special conditions, because there is no evidence establishing that the conditions are
necessary for petitioner's reformation or for the protection of the public. (4) Neither
petitioner's prior arrests nor his convictions for drug-related crimes, petitioner argues,
provides a basis for ordering the special conditions of supervision. Petitioner concludes
that the board acted outside the range of discretion granted to it under ORS 144.102(3)(a)
in ordering the special conditions, based on speculation of what might be appropriate
after a sex offender evaluation. The board responds that, under ORS 144.102(3)(a), the
special conditions of post-prison supervision need not necessarily be due to the current
convictions, as long as the special conditions relate to the individual characteristics of the
offender. The board explains, "It is important to note that the board has not found that
petitioner is a sex offender. The board has simply ordered that the possibility be
evaluated, and treatment provided if needed." The board relies on circumstances in
petitioner's criminal history that suggest that petitioner might benefit from sex offender
treatment.

Martin informs our understanding of the board's discretionary authority. In
Martin, the victim lived within Lane County and there was evidence that a chance
encounter between the victim and the petitioner could cause harm to the victim. Based on
that fact, the board excluded the petitioner from all of Lane County except for a narrow
strip of land along the coast. 327 Or at 151-52. The Supreme Court concluded that the
board's "choice in this case lies well within the permissible range of choices that it could
make." Id. at 160. Here, based on petitioner's arrests in 1991 and 1993, his conviction
for menacing, and the contingent imposition of the special conditions of supervision, we
cannot say the board exceeded the discretion granted it by ORS 144.102(3)(a).

Petitioner raises an argument that suggests the board's order is not
supported by substantial evidence. We would review such an argument under ORS
183.482(8)(c). However, the facts in this case are not disputed. We understand
petitioner's argument to be that the board's conclusion from the undisputed facts is not
supported by substantial reason. That argument is also reviewed under ORS
183.482(8)(c). We turn to that argument.

Petitioner argues that the board fails to demonstrate any reason, let alone
substantial reason, for its conclusion that the special conditions are necessary. In
petitioner's view, the board is speculating that he would benefit from or is in need of sex
offender treatment. Finally, petitioner argues, the necessity for the special conditions
must be apparent from the board's order and the necessity for these special conditions is
not apparent from the board's order. The board responds that it explained why it decided
to impose the contingent special conditions and that its explanation constitutes substantial
reason. In explaining its decision, the board emphasized that the special conditions are
required if, and only if, the supervising officer determines that they are appropriate after a
sex offender evaluation; thus, the board reasons, the conditions are specially tailored to
petitioner's individual needs, as well as the protection of public safety.

In conclusion, we hold that the board properly exercised its discretion in
imposing the contingent special conditions of supervision and that the board adequately
explained why it imposed the conditions.

Affirmed.

1. Because petitioner was discharged from post-prison supervision in December
2007, the special condition that petitioner have no contact with minors is moot. However, there
remains a justiciable controversy between the parties as to the other special conditions, because
the state is seeking payment from petitioner for the costs related to those conditions. The
remainder of our analysis concerns only the other special conditions.

3. Petitioner makes a single assignment of error: "The board erred in imposing sex
offender special conditions of post-prison supervision." Also, petitioner states that the standard
of review is for abuse of discretion, citing ORS 183.482(8)(b)(A). However, as we understand
petitioner's arguments, those arguments implicate other standards of review. As we will discuss,
petitioner also argues that the board exceeded its statutory authority in imposing the special
conditions and that the board's order lacks substantial reason. Those two arguments are reviewed
under ORS 183.482(8)(a) and 183.482(8)(c). Thus petitioner conflates various arguments.

4. Petitioner concedes that the board can consider the protection of the public in
fashioning special conditions of supervision, see Martin, 327 Or at 159, even though the
protection of the public is not listed in ORS 144.102(3)(a).

5. In addition to the facts recited in the order, the record shows that, in a sex offender
assessment completed September 21, 2004, petitioner reported that the alleged victim of the 1991
dismissed sodomy charges was the 9 or 10-year-old son of a friend. Also, in 1993, petitioner was
convicted of two counts of endangering the welfare of a minor, although the record does not set
forth the facts relating to those convictions.

6. In his reply brief, petitioner argues for the first time that the board lacked authority
to delegate to the supervising officer the determination of whether these special conditions
should be imposed. Because petitioner did not raise this argument to the board, he did not
exhaust his administrative remedies. ORS 144.335(1)(b). In addition, petitioner did not assign it
as error in his opening brief. See Clinical Research Institute v. Kemper Ins. Co., 191 Or App
595, 608, 84 P3d 147 (2004) ("We generally will not consider a basis as to why the trial court
erred that was not assigned as error in the opening brief but was raised for the first time by way
of reply brief."). For both reasons, we do not address petitioner's delegation argument.